Why companies fail to pay the National Minimum Wage and how to avoid the same mistakes

The Government recently named over 200 companies for failing to pay the national minimum wage (NMW).

The list includes firms of all sizes and various sectors. Some notable brands include WH Smith, Argos, and Marks & Spencer.

Those named were found to have failed to pay their workers almost £5 million and were told to reimburse more than 63,000 workers, and together pay £7 million in fines to HM Revenue & Customs (HMRC).

Common breaches

The most common breaches appear to be either unintentional or have already been resolved.

Two-fifths (39 per cent) of the firms were on the list for deducting pay from workers’ wages and failing to pay workers correctly for their working time. Another 21 per cent were on the list for paying the incorrect apprenticeship rate.

In previous years, other high-profile names such as Pret A Manger, John Lewis, and The Body Shop have also appeared on the Government’s list as a result of minimum wage underpayments.

The biggest violations at the time included:

• 37 per cent of the firms failing to correctly deduct pay from wages for things such as uniforms and expenses
• 29 per cent failing to pay working time, such as mandatory training, trial shifts, and travel time
• 16 per cent failing to pay apprentices the correct rate.

Additional factors

In addition to the above, there are several other factors that contribute to companies failing to pay the NMW.

This includes companies incorrectly classifying their workers, and registering them as self-employed instead of employees, which can lead to underpayment.

Salary sacrifice schemes can also lead to NMW violations. HMRC considers post-sacrifice pay as what counts for NMW.

If an employee sacrifices part of their salary for benefits, such as childcare or a cycle-to-work scheme, the employer must look at their pay after deductions to ensure it still meets the NMW.

Some companies fail to pay workers for the time spent travelling between jobs, which is a common reason for not meeting the legal minimum wage.

Deducting money from pay for things like uniforms, tools, or other employee benefits schemes can also reduce take-home pay and lead to NMW violations.

There are also instances when employers fail to pay for overtime, meaning workers are not paid for all the time they have worked.

Additionally, some companies fail to correctly update workers’ pay to the correct rate of NMW or NLW due to annual rate rises or significant birthdays when their rate changes.

Unintentional errors

Most of the major brands have claimed that the errors were unintentional. For instance, WH Smith misinterpreted rules around uniforms, having asked staff to wear specific-coloured trousers, skirts, and shoes without reimbursing them for it.

Marks & Spencer pointed to an unintentional technical issue from four years ago that resulted in a pay dispute for temporary employees.

Sainsbury’s, which owns Argos, was informed that a payroll error that was discovered in 2018 had affected some Argos store colleagues and drivers and dated back to 2012, before Sainsbury’s acquired Argos.

How to avoid similar mistakes

The majority of the time, employers do not know they are violating the NMW since they are not keeping adequate records.

It is important for employers to understand how statutory wage regulations apply to their workers.

Time spent on call at the workplace, travelling for work, or attending work-related conferences and training courses all count as working time for the regulations; however, some employers fail to include this time when calculating wages.

Employers also need to have the proper systems in place to raise staff members’ wages as they age, but failing to do so could result in employers finding themselves on the receiving end of an employment tribunal claim and receiving substantial penalties.

If you would like assistance to ensure your business is keeping up to date with NMW, please contact us today.